Jacob R. Weaver v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 20, 2019
• Docket: 19A-CR-1054
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Nov 20 2019, 6:32 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Joseph P. Hunter Curtis T. Hill, Jr. Muncie, Indiana Attorney General of Indiana

Tiffany A. McCoy Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jacob R. Weaver, November 20, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1054 v. Appeal from the Delaware Circuit Court State of Indiana, The Honorable Marianne L. Appellee-Plaintiff Vorhees, Judge Trial Court Cause No. 18C01-1810-F5-167

Altice, Judge.

Case Summary

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1054 | November 20, 2019 Page 1 of 5 [1] Following a bench trial, Jacob R. Weaver was convicted of Level 5 felony

domestic battery and Class A misdemeanor resisting law enforcement. He

challenges only his battery conviction on appeal, seeking application of the

incredible dubiosity rule to establish insufficiency of the evidence.

[2] We affirm.

Facts & Procedural History

[3] Weaver and Kelci Gilliam dated off and on for many years and had previously

lived together. At the time in question, however, Gilliam was living in a home

with her mother and maternal grandparents.

[4] After midnight on June 25, 2018, Weaver was outside Gilliam’s residence

repeatedly calling her through Facebook Messenger. She did not answer

several calls and then responded to him with a text message telling him to leave

her alone. Weaver called several more times and sent her a text message

demanding that she answer the phone. After she had not answered his calls for

five minutes, he wrote her: “Are u stupid Come to the goddamnd [sic] wibdow

[sic].” Exhibits at 15. He called many more times and sent angry messages for

another ten minutes or so.

[5] Eventually, Gilliam went outside and spoke with him near her front yard.

Weaver was “really mad” and a verbal argument quickly ensued between the

two. Transcript at 53. Gilliam’s mother heard the argument and looked out the

window. Weaver proceeded to headbutt Gilliam, which caused her pain.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1054 | November 20, 2019 Page 2 of 5 Gilliam responded by throwing a makeup container at Weaver, striking him in

the face and breaking his glasses. Weaver then grabbed Gilliam by the hair and

started pulling her down the road. He let go of Gilliam when a neighbor came

outside and confronted him.

[6] In the meantime, Gilliam’s mother, Angela, had called 911 after seeing Weaver

headbutt Gilliam. Among other things, Angela reported to the dispatcher, “my

daughter’s ex-boyfriend is chasing her down the road and threatening her and

doing whatever he can to her.” Id. at 79. The dispatcher asked, “Did he hit

her?”, and Angela responded affirmatively. Id. at 80. Angela remained on the

phone with the dispatcher until the police arrived. Midway through the call

Gilliam made it back to the house, and the family locked themselves inside.

[7] Muncie Police Officers Bryan Ashton and Jacob Woods responded to the

dispatch, which came at 1:20 a.m. Upon arriving in the area, they observed a

man, later identified as Weaver, standing in the street just north of Gilliam’s

residence. Weaver fled north into an alley when Officer Ashton activated the

emergency lights on their marked police vehicle. Officer Ashton then chased

Weaver on foot, as Officer Woods drove around the block. Weaver was caught

trying to crawl under a parked vehicle.

[8] After Weaver was apprehended, Officer Ashton went to speak with Gilliam,

who was crying, upset, and seemed scared. She complained of pain to her

forehead, though Officer Ashton could see no visible injuries. Weaver,

however, had visible injuries to his nose and forehead.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1054 | November 20, 2019 Page 3 of 5 [9] On October 8, 2018, the State charged Weaver with domestic battery, resisting

law enforcement, and criminal trespass, all as Class A misdemeanors. The

State also filed a notice of intent to seek enhancement of the battery to a Level 5

felony based on a prior conviction for battery against Gilliam. Following a

bench trial on April 4, 2019, Weaver was convicted of Level 5 felony domestic

battery and Class A misdemeanor resisting law enforcement. On May 6, 2019,

the trial court sentenced him to an aggregate sentence of four years in prison.

On appeal, Weaver challenges only his conviction for domestic battery.

Discussion & Decision

[10] Likely aware that under the general sufficiency standard of review he would

lose on appeal, Weaver frames his argument in terms of the incredible dubiosity

rule. However, he does not appear to understand the extremely limited

application of this rule.

The incredible dubiosity rule allows the court to impinge upon the [trier of fact’s] assessment of witness credibility when the testimony at trial is so contradictory that the verdict reached would be inherently improbable. For the incredible dubiosity rule to apply, the evidence presented must be so unbelievable, incredible, or improbable that no reasonable person could ever reach a guilty verdict based upon that evidence alone.

Moore v. State, 27 N.E.3d 749, 751 (Ind. 2015). Further, the witness’s testimony

must be wholly uncorroborated. That is, we will only impinge on the trier of

fact’s duty to judge witness credibility “where a sole witness presents inherently

contradictory testimony which is equivocal or the result of coercion and there is

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1054 | November 20, 2019 Page 4 of 5 a complete lack of circumstantial evidence of the appellant’s guilt.” Id. at 755

(emphases in original) (quoting Tillman v. State, 642 N.E.2d 221, 223 (Ind.

1994)).

[11] The incredible dubiosity rule is inapplicable here for several reasons. First,

there were two eyewitnesses to the battery, the victim and her mother, and both

testified at trial. Second, Gilliam’s testimony was not inherently contradictory,

equivocal, or the result of coercion. She unequivocally testified that Weaver

headbutted her and pulled her down the road by her hair until confronted by a

neighbor. 1 Further, corroborating evidence included Gilliam’s mother’s

testimony, the 911 recording, and the responding officers’ observations at the

scene, including Weaver’s flight, his visible facial injuries, and Gilliam’s

demeanor. Also admitted into evidence were the angry text messages sent and

repeated calls made by Weaver to Gilliam just before the battery. The evidence

is amply persuasive of Weaver’s guilt and comprises more than substantial

evidence to support the convictions. Accordingly, he may not receive relief

under the incredible dubiosity rule. See Tillman, 642 N.E.2d at 223.

[12] Judgment affirmed.

Brown, J. and Tavitas, J., concur.

1 The minor inconsistencies noted by Weaver – regarding the length of their relationship and why she went outside – are not relevant in terms of the incredible dubiosity rule, nor is the fact that Gilliam did not have visible injuries immediately after the battery.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1054 | November 20, 2019 Page 5 of 5